The Puzzle of Defining "Bodily Injury" under the Warsaw Convention: Laxity of Courts in Requiring an Objective, Palpable Bodily Injury Will Lead to a Flood of Insignificant Claims for Hurt Feelings

IN ACTIONS involving by aircraft, the rights of the parties are governed exclusively by a treaty known as the Warsaw Convention, (1) which was promulgated in 1929 and ratified by the United States Senate in 1934. At present, more than 120 nations are signatories the THE CONVENTION Article 1(1) of the convention provides it applies to all of persons, baggage, or goods performed by aircraft for hire. The phrase international transportation is defined in Article 1(2) of the convention as in which, according the contract made by the parties, the place of departure and the place of destination, whether or not there be a break in the or transshipment, are situated either within the territories of two High Contracting Parties, or within the territory of a single High Contracting Party, if there is an agreed stopping place within a territory subject the sovereignty, suzerainty, mandate or authority of another power, even though power is not a party this convention. As a treaty of the United States, the Warsaw Convention supersedes state law and policy and is the supreme law of the land. (2) The cause of action for personal or death created by the Warsaw Convention is set forth in Article 17, which provides: The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other suffered by a passenger, if the which caused the damage so sustained took place board the aircraft or in the course of any of the operations of embarking or Article 17 provides the exclusive cause of action for and wrongful death caused by an on board the aircraft or in the course of any of the operations of embarking or disembarking. It is the only remedy for during transportation, and in the context of American jurisprudence it completely pre-empts state law claims. (3) If a plaintiff can prove both an accident and a bodily injury resulting from the plaintiff may recover pecuniary damages. Punitive damages are not permitted in a case governed by the (4) What constitutes an accident under Article 17 was addressed by the U.S. Supreme Court in Air France v. Saks (5) and its progeny. This article focuses a narrower topic: If the plaintiff has sustained an accident, what is the extent of bodily injury required be proved allow recovery under the Warsaw Convention? WHAT IS BODILY INJURY? A. Floyd The U.S. Supreme Court held in 1991 in Eastern Airlines Inc. v. Floyd, (6) a passenger cannot recover for or psychic injuries unaccompanied by physical injuries or physical manifestation of injury. Floyd was an action brought by a group of passengers traveling an flight aboard Eastern Airlines from Miami the Bahamas. The aircraft's engines failed in flight, and the passengers were advised prepare ditch into the Atlantic Ocean. Fortunately, the crew was able restart the engines, and the plane was landed uneventfully back in Miami. The passengers sued Eastern, claiming damages for mental distress arising from the incident. Eastern conceded the incident amounted an accident under Article 17, but it argued bodily injury was also a prerequisite liability under Article 17. After reviewing the drafting history of the Warsaw Convention, the Court agreed with Eastern and held that Article 17 does not allow recovery for purely mental injuries, stating, We conclude an air carrier cannot be held liable under Article 17 when an has not caused a passenger suffer death, physical injury, or physical manifestation of injury. B. Post-Floyd Since Floyd, numerous cases have held where a passenger alleges mental injures such as dizziness, anxiety, sleeplessness, irritability and loss of confidence, those claimed injuries are insufficient meet the bodily injury requirement of Article 17 necessary impose liability the airline. …